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Judicial Activism vs. Liberty
Thursday, July 01, 2010 2:29 PM

Elena Kagan called the military’s “Don’t Ask, Don’t Tell” policy “a moral injustice of the first order.” A moral injustice of the first order? Where on her moral hierarchy is a real “first order” injustice like murder? Not high enough. For Elena Kagan, sexual standards that protect military readiness are a moral injustice, but tearing apart a baby in the womb is a moral right.

I have little doubt that given the opportunity, Ms. Kagan would impose this kind of inverted moral reasoning in her judicial opinions. She already advocated as much when she clerked for Justice Marshall, and when she distorted information about partial birth abortion as a policy advisor to President Clinton. She wants to correct what she sees as injustices from the bench.

That should scare everyone. By whose standard is she declaring something unjust?

Whenever someone talks about an injustice, they are implying that there is such a thing as justice. You can’t know what is not just unless you know what is just. True justice, however, requires grounding in something other than human opinion. Otherwise, we are left with the problem of, “Who sez?”

According to our Declaration of Independence, that grounding is our Creator. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Our founders called this “Nature’s Law” or “Natural Law”—the same Natural Law that Vice President Joe “Ted Knight” Biden pooh-poohed when he was the Senator from Delaware during Clarence Thomas’s confirmation hearings. (My money is on the intellectual firepower of our founders, not Ted Knight.)

If there is no God, then everything is just a matter of opinion—kicking out of the military people who commit homosexual acts is no better or worse than keeping them in. In fact, if there is no God, Mother Teresa was not morally better than Hitler in any objective sense. In order for Mother Teresa’s behavior to be “better” than Hitler’s, there has to be an objective standard of “best” beyond both of them by which we can measure both of them.

C.S. Lewis put it this way, “The moment you say that one set of moral ideas can be better than another, you are, in fact, measuring them both by a standard, saying that one of them conforms to that standard more nearly than the other. But the standard that measures two things is something different from either. You are, in fact, comparing them both with some Real Morality, admitting that there is such a thing as a real Right, independent of what people think, and that some people’s ideas get nearer to that real Right than others. Or put it this way. If your moral ideas can be truer, and those of the Nazis less true, there must be something—some Real Morality—for them to be true about.”

My question for Ms. Kagan is this: What’s your standard? By what standard is “Don’t Ask, Don’t Tell” “a moral injustice of the first order” and abortion a moral right?

Does she appeal to the Constitution? Certainly the Constitution says nothing about homosexuality or abortion (despite what activist courts have said). But the Constitution does assign the authority to Congress (not the courts) to establish rules for a well-functioning military. That’s why Kagan’s cries of unjust discrimination by the military are false. She needs to understand that military service is not a right. As I’ve argued before, for the sake of national security, the military rightfully discriminates against numerous behaviors and conditions. Recruits can only qualify if they meet rigorous physical and mental standards and agree to give up certain behaviors (that’s why it’s called “service”). This has always been true about the world’s greatest military beginning with George Washington’s army. Since joining the military is not a constitutional right, along with these other reasons, “Don’t Ask, Don’t Tell” is certainly constitutional.

Does Ms. Kagan appeal to God and Natural Law for her standard? I doubt she would go there. If so, she would have to make the untenable case that God believes homosexual behavior and abortion are moral rights. That’s anything but self-evident, as evidenced by the texts of all major religions, the “laws of nature,” and the design of the human body. Our founders called homosexuality a “crime against nature” for a reason.

If Natural Law and the Constitution are not standards of justice for Ms. Kagan, what is? She’s left with nothing but her own personal moral standard. “Who sez?” is not Natural Law or the Constitution, but Elena Kagan. And that’s exactly the problem with activist judges. They ignore the laws of nature and the laws of the land to legislate their own laws based on their own personal standard of morality—and in the case of liberal activists, it's usually a very bizarre, morally inverted standard.

“But you can’t legislate morality!” Nonsense. All laws legislate morality. Each law declares one behavior right and its opposite wrong. The only question is, “Whose morality will be legislated?”

Unfortunately, activist judges often ignore our common “self-evident” morality in order to legislate their own immorality on the rest of the nation.

That must stop if freedom is to survive. All freedom-loving Americans should oppose judicial activists. Even if you agree with Ms. Kagan on certain issues, you should want the people to retain the power to govern themselves. Otherwise, when she disagrees with you, you will have little practical recourse. So, if you want legal abortion or gays in the military, then persuade your fellow citizens and legislators to vote for such measures. Pass a constitutional amendment like we did with slavery and women’s suffrage. That’s what the amendment process is for!

But don’t give up your liberty and the ability to govern yourself by allowing unelected, lifetime-appointed, judges to impose their view of what’s good for America on you and the rest of the country. That's judicial tyranny, plain and simple, and that’s exactly what we’re asking for when we put judicial activists on the Supreme Court.

“Don’t Ask Don’t Tell” is not “a moral injustice of the first order.” Giving up liberty won by the sacrifice of millions is.

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